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Filed 11/27/23; Certified for Publication 12/18/23 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

CRISTA MILLER,

Plaintiff and Appellant,

v.

PACIFIC GAS AND ELECTRIC 

COMPANY, et al., 

Defendants and Respondents.

 A165638

 (San Francisco City & County 

 Super. Ct. No. CGC20582606)

Crista Miller tripped on a vertical misalignment of less than one inch 

between the metal plate covering an underground utility vault owned by 

Pacific Gas and Electric Company (PG&E) and the surrounding sidewalk 

adjacent to property owned by Hip Sen Benevolent Association (Hip Sen), 

causing her to fall and hurt her ankle. The trial court granted summary 

judgment, ruling that the lawsuit was barred by the trivial defect doctrine. 

We affirm.

BACKGROUND

The Incident

At 11:30 p.m. on Saturday, February 16, 2019, Miller and her husband 

were walking on Washington Street toward Grant Street in San Francisco’s 

Chinatown on what they described as a “steep downhill slope.”
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It was a typical Saturday evening in the neighborhood. It had drizzled 

earlier in the evening and the night sky was dark, foggy, and misty. The 

sidewalk was wet and crowded with people. Miller did not recall it “ ‘feel[ing]

dark’ ” as the sidewalk was in an urban setting with lights from multiple 

sources, including streetlights and store lights. 

Miller tripped on the vertical misalignment between a metal plate 

covering an underground utility vault owned by PG&E and the surrounding 

sidewalk adjacent to property owned by Hip Sen. While walking downhill, 

she stepped with her left foot on the rectangular, metal plate cover near the 

center of the sidewalk. A toe on her left foot contacted the differential at the 

left, downhill side of the metal plate, and she fell forward and landed on the 

sidewalk. 

The parties agree the height differential between the sidewalk edge 

and metal plate was less than one inch. The metal plate covering the utility 

vault was made of ordinary, diamond-plated metal. It was “neither ‘super 

smooth’ nor ‘strange’ in any way,” but it was wet from the earlier rainfall. 

Miller asserted she did not see the height differential before she tripped

because she was going downhill and therefore looking some eight to ten feet 

ahead.

No History of Tripping Accidents at the Location

The City and County of San Francisco (the City)’s 311 call system is the 

central repository for complaints and service requests concerning sidewalks. 

A City employee found no complaints or service requests concerning the

incident location between January 1, 2010 and February 16, 2019 (date of 

incident). Hip Sen was also not aware of any prior tripping incidents having 

occurred on the sidewalk adjacent to its property at any time. 
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City Repair Guidelines

The City’s Department of Public Works has guidelines concerning the 

repair of sidewalk defects to improve accessibility within the area of a 

sidewalk most traveled by pedestrians: Good Neighbor Guidelines (Order 

No. 177,526) and Guidelines for Inspection of Sidewalk Defects (Order 

No. 178,884). Priority repairs include sidewalk defects of vertical 

displacement, meaning the sidewalk pavement or curb is displaced by a halfinch or more from the abutting pavement or curb.

After Miller’s fall, a City inspector evaluated the incident location in 

July 2019 and issued notices requiring PG&E and Hip Sen to repair the 

vertical misalignment of the sidewalk and metal plate cover. The repairs 

were completed. 

Motions for Summary Judgment

Miller sued PG&E and Hip Sen, alleging general negligence and 

premises liability (a theory of negligence) against both defendants. The 

gravamen of the complaint was that defendants had allowed a dangerous 

condition – the vertical misalignment of the metal plate cover and 

surrounding sidewalk – to exist. 

PG&E and Hip Sen filed separate motions for summary judgment on 

the basis that the vertical misalignment did not constitute a dangerous 

condition because it was trivial in nature and size and there were no other 

factors that raised a question of fact regarding the triviality of the defect. In 

opposition, Miller argued there was a triable issue of fact based on evidence 

that the vertical alignment was more than one-half inch in size and based on 

the City’s guidelines regarding repairs. Miller further argued the 

circumstances surrounding her accident raised a triable issue as to the 

existence of a dangerous condition despite its trivial nature and size. 
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The trial court granted the motions based on the trivial defect doctrine. 

The court found defendants had met their initial burden of demonstrating the 

height differential between the sidewalk and metal plate cover was trivial in 

nature and therefore did not constitute a dangerous condition requiring 

repair or warning. It further found Miller had failed to meet her burden of 

showing a triable issue of material fact concerning triviality. It also found no

triable issue of material fact as to whether the vertical misalignment was a 

dangerous condition based on the City having issued notices requiring PG&E 

and Hip Sen to repair the sidewalk and metal plate cover. “As PG&E points 

out, the City’s policy is to issue Notices to Repair whenever there is a 

sidewalk differential of .5 inches or greater. . . . However, the City’s notice 

guidelines do not impose a legal duty to repair defective conditions under the 

trivial defect standard. The Court finds that sidewalk maintenance need not 

meet the .5-inch differential throughout the entire City in order for 

[defendants] to . . . avail [themselves] of the trivial defect doctrine.” 

The court entered a judgment of dismissal in favor of defendants on 

June 9, 2022, and this appeal ensued.

DISCUSSION

I. Standard of Review 

We review the propriety of a grant of summary judgment de novo, 

“considering all the evidence set forth in the moving and opposition papers 

except that to which objections have been made and sustained.” (Guz v. 

Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) As in the trial court, we 

first determine whether the moving party has met its initial burden to 

establish facts justifying judgment in its favor; if so, we then decide whether 

the opposing party has demonstrated the existence of a triable, material issue 

of fact. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 
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621, 630.) “We need not defer to the trial court and are not bound by the 

reasons in its summary judgment ruling; we review the ruling of the trial 

court, not its rationale.” (Ibid.)

II. Vertical Misalignment Was a Trivial Defect as a Matter of Law

A. Trivial Defect Doctrine

To recover damages for either negligence or premises liability, Miller 

must prove defendants breached a legal duty to either repair or warn about 

the existence of a dangerous condition – the vertical misalignment – that 

allegedly caused her to trip and fall. (See Stathoulis v. City of Montebello

(2008) 164 Cal.App.4th 559, 566 [elements of premises liability]; Ursino v. 

Big Boy Restaurants (1987) 192 Cal.App.3d 394, 397 [elements of negligence 

liability].) 

It is well settled law that landowners are “not liable for damages 

caused by a minor, trivial or insignificant defect in property.” (Caloroso v. 

Hathaway (2004) 122 Cal.App.4th 922, 927.) In the context of sidewalk 

defect cases, landowners “do[] not have a duty to protect pedestrians from 

every sidewalk defect that might pose a tripping hazard – only those defects 

that create a substantial risk of injury to a pedestrian using reasonable care.” 

(Nunez v. City of Redondo Beach (2022) 81 Cal.App.5th 749, 757 (Nunez); see 

Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1109–1110 (Huckey) 

[while the height differential of sidewalk defect “posed some risk of injury,” 

and was evidence of a “tripping hazard,” to constitute a dangerous condition 

the height differential and the area surrounding it must pose “ ‘a substantial 

. . . risk of injury’ ”].) This simple principle of law is referred to as the trivial 

defect doctrine – “it is not an affirmative defense but rather an aspect of duty 

that [a] plaintiff must plead and prove,” and it applies where liability is 
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alleged against both governmental entities and private landowners such as 

defendants. (Caloroso, at p. 927.) 

Whether a particular sidewalk defect is trivial and nonactionable may 

be resolved as a matter of law using a two-step analysis. (Huckey, supra, 37 

Cal.App.5th at p. 1105 [citing cases applying two-step analysis]; see Nunez, 

supra, 81 Cal.App.5th at p. 758 [accord].) First, we review the evidence of the 

size and nature of the defect. (Huckey, at p. 1105.) If that analysis supports 

a finding of a trivial defect based on its physical characteristics, we then 

consider whether the defect was likely to pose a significant risk of injury 

because there was evidence that the conditions of the walkway surrounding 

the defect or the circumstances of the accident “ ‘ma[de] the defect more 

dangerous than its size alone would suggest.’ ” (Ibid.) If the evidence of 

additional factors does not indicate the defect was sufficiently dangerous to a 

reasonably careful person, we deem the defect trivial as matter of law. (Id. at 

p. 1105.)

One court of appeal has recently rejected this two-step analysis and 

used “a holistic multi-factor framework for assessing triviality” as a matter of 

law, holding that “the size of the defect is but one of the many circumstances 

to be considered; however, size remains the ‘ “most important” ’ of the 

dangerous condition factors.” (Stack v. City of Lemoore (2023) 91 Cal.App.5th 

102, 114.) 

Under either approach, we conclude the vertical misalignment of the 

metal plate cover and surrounding sidewalk was a trivial defect as a matter 

of law barring this lawsuit.
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B. Defendants Made Prima Facie Showing that Vertical

Misalignment Was Trivial Defect

Defendants met their initial burden of presenting evidence (both 

testimonial and photographic) demonstrating prima facie that the vertical 

misalignment was a trivial defect based on the following factors: (1) the size, 

nature, and quality of the defect – a vertical misalignment of less than one 

inch with no broken pieces or jagged edges on the metal plate or surrounding 

sidewalk; (2) visibility – although the accident occurred at nighttime the area 

was illuminated with artificial lighting from multiple sources and there was 

no debris or material on the metal plate or surrounding sidewalk that 

concealed the defect; and (3) lack of prior incidents – there was no evidence of 

tripping incidents before Miller’s accident. (See Huckey, supra, 37 

Cal.App.5th at p. 1105 [discussing factors to be considered in making prima 

facie showing that sidewalk defect was trivial].) 

C. City Guidelines Do Not Raise a Triable Issue

In challenging defendants’ prima facie showing, Miller contends the 

vertical misalignment cannot be deemed trivial as a matter of law because

City guidelines require repair of sidewalk height differentials one-half inch or 

greater and the City inspector ordered repairs of the misalignment. 

Therefore, Miller contends, a trier of fact could find the virtual misalignment 

was a dangerous condition, citing to Laurenzi v. Vranizan (1945) 25 Cal.2d 

806 (Laurenzi). We disagree. 

Miller’s reliance on City guidelines requiring repair of sidewalk height 

differentials of one-half inch or great is unavailing as she has presented no

evidence that the City’s standard for repair of sidewalk defects has “been 

accepted as the proper standard in California for safe sidewalks.” (Caloroso, 

supra, 122 Cal.App.4th at pp. 928–929 [defendant’s noncompliance with 
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certain building codes and standards did not raise triable issue of fact that 

sidewalk crack was dangerous].) 

Miller’s reliance on the repair orders is also unavailing, as is her 

reliance on Laurenzi. In Laurenzi, the plaintiff’s foot became wedged in a 

large hole in a sidewalk (a foot long, up to two and one-half inches deep, and 

from two inches wide at one end to six inches wide at the other end); at the 

time of the fall, the area was poorly lit, the sidewalk was wet with scattered 

carrot top debris, and vegetable crates were stacked on either side of hole; 

and a City inspector testified that he would consider the sidewalk condition 

to be “hazardous.” (Id. at pp. 808, 811, 812). Here, we are concerned with an 

unobscured vertical misalignment of less than one inch, a nighttime urban 

location illuminated by artificial lights from multiple sources, and no 

evidence that the City inspector’s decision to order repairs was premised on a 

finding that the vertical misalignment was a hazardous condition. (See 

Nunez, supra, 81 Cal.App.5th at p. 759 [rejecting argument that Laurenzi 

stands for proposition that a city’s determination that a sidewalk defect is 

hazardous and in need of repair precludes finding the defect was trivial as a 

matter of law; “[t]he Laurenzi court did not hold . . . that the city’s admission 

that a particular defect might be dangerous creates a triable issue of fact as 

to whether an otherwise trivial defect constitutes a dangerous condition,” 

italics added].) 

D. Circumstances of Accident Do Not Raise a Triable Issue 

Having found defendants made a prima facie showing that the vertical 

misalignment is a trivial defect, we next examine Miller’s argument that the 

circumstances of her accident raise a triable issue of material fact as to 

whether the defect could be found to be a dangerous condition that would put 

a reasonably careful pedestrian at significant risk of injury. She asks us to 
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consider that the following circumstances – the steep downward decline of 

the sidewalk, the weather, the nighttime hour, and the crowds on the street –

all combined to make the height differential less obvious than it would 

appear in the daylight, thereby creating a dangerous condition necessitating 

denial of summary judgment. We disagree. 

As to the decline of the sidewalk, we find unavailing Miller’s contention 

that the visibility of the vertical misalignment was obscured because the 

incident occurred on a steep (9% grade) downhill slope, affecting her depth 

perception and creating an “optical illusion” that the sidewalk surface was 

level. Even accepting her assertions concerning the grade percentage of the 

downward slope,1 neither in the trial court nor on appeal does Miller cite to 

any relevant authority, legal or scientific, supporting her assertions 

concerning human vision and perception of an “optical illusion.” (See 

McGonnell v. Kaiser Gypsum Co., Inc. (2002) 98 Cal.App.4th 1098, 1106 

[party cannot manufacture triable issue of fact with self-serving opinion and 

speculation devoid of any basis, explanation, or reasoning].) While Miller 

refers to the Americans with Disabilities Act standards regarding maximum 

1 We have disregarded defendants’ arguments challenging Miller’s 

assertions concerning the grade percentage of the downward slope of the 

sidewalk. In the absence of any showing that the trial court granted 

objections to this evidence, we presume the court overruled any objections 

and considered the disputed assertions in ruling on the motions. (Reid v. 

Google, Inc. (2010) 50 Cal.4th 512, 534.) While impliedly overruled 

evidentiary objections may be renewed on appeal, the burden is on 

defendants to properly present those arguments and they have failed to do so. 

(Cal. Rules of Court, rule 8.204(a)(1)(B).) PG&E does not include record 

citations showing it made written evidentiary objections in the trial court, 

and it proffers no citations to relevant statutory or case authority. Hip Sen 

similarly does not include record citations showing it made written 

evidentiary objections in the trial court, and while it cites to Evidence Code 

sections, it offers no explanation as to how the statutory provisions support 

its argument. 
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percentage grades allowed for ramps, she has not cited any law indicating 

that is a relevant standard for determining whether a sidewalk defect 

constitutes a dangerous condition. (See Caloroso, supra, 122 Cal.App.4th at 

p. 928 [evidence that defendant’s noncompliance with certain building codes 

and standards made sidewalk crack dangerous did not raise triable issue as 

there was no evidence that the codes and standards “have been accepted as 

the proper standard in California for safe sidewalks”].)2

We also are not persuaded by Miller’s argument that the weather, the 

nighttime hour, and the crowds on the street combined to make this a 

dangerous condition. It was a typical February evening in San Francisco’s 

Chinatown. The sky was foggy and misty and the streets were wet from an 

earlier rainfall, but according to Miller it was not actively raining and the 

street was illuminated. Moreover, despite the frequency of heavy pedestrian 

traffic in the area, there is no evidence that anyone other than Miller had 

complained of tripping at that location. 

We therefore agree with the trial court that Miller failed to proffer 

evidence sufficient to raise a triable issue of fact as to “whether the size of the 

height differential itself, or any other circumstances concerning it, rendered 

it a dangerous condition.” (Huckey, supra, 37 Cal.App.5th at p. 1108.) 

III. Miller’s Claim that Complaint Supports Theory of Negligence 

Per Se Is Forfeited 

Miller argues summary judgment should be reversed because the City’s 

repair notices to PG&E and Hip Sen for their violations of the City’s 

2 While not dispositive, we note the photographs in the record do not 

reflect that the sidewalk was on one of the steep hills for which the City is 

famous; rather they reflect the sidewalk’s downward slope was gradual and 

unremarkable. Additionally, Miller did not submit photographic evidence 

showing that at nighttime the vertical misalignment was not visible.
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Guidelines render them liable under a theory of negligence per se. This 

argument is forfeited.

Miller did not raise this argument to the trial court although there was 

no barrier to her doing so. It is a fundamental principle that an appellate 

court will generally not consider an issue presented for the first time on 

appeal that could have been but was not presented in the trial court. (See 

Bank of America, N.A. v. Roberts (2013) 217 Cal.App.4th 1386, 1398–1399.) 

Further, appellate arguments presented for the first time in a reply brief (as 

Miller has done) are forfeited without a showing of good cause. (See 

Committee to Relocate Marilyn v. City of Palm Springs (2023) 88 Cal.App.5th 

607, 636, fn. 8.; Holmes v. Petrovich Development Co., LLC (2011) 191 

Cal.App.4th 1047, 1064, fn. 2.) We see no reason not to apply the general 

rules of forfeiture. 

IV. Conclusion

In sum, the trial court properly granted summary judgment as 

reasonable minds could come to only one conclusion in this case – that the 

vertical misalignment of the metal plate cover and surrounding sidewalk was 

a trivial defect. Despite Miller’s argument to the contrary, we see no 

evidence from which a reasonable trier of fact could find the trivial sidewalk 

defect posed a substantial risk of injury to a foreseeable pedestrian exercising 

due care. Therefore, we shall affirm. 

DISPOSITION

The judgment is affirmed. Defendants and respondents are awarded 

costs on appeal. 
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_________________________

Petrou, J.

WE CONCUR:

_________________________

Fujisaki, Acting P.J.

_________________________

Rodríguez, J.

A165638/Miller v. Pacific Gas and Electric Company, et al.
Filed 12/18/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

CRISTA MILLER,

Plaintiff and Appellant,

v.

PACIFIC GAS AND ELECTRIC 

COMPANY, et al., 

Defendants and Respondents.

 A165638

 (San Francisco City & County 

 Super. Ct. No. CGC20582606)

BY THE COURT:‡

The written opinion which was filed on November 27, 2023, has now

been certified for publication pursuant to rule 8.1105(b) of the California

Rules of Court, and it is ordered published in the official reports.

Dated: ___12/18/2023______ ____ Fujisaki, Acting P.J._________

 Acting Presiding Justice

‡ Petrou, J., Fujisaki, Acting P.J., Rodríguez, J. 
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Trial Court: San Francisco County Superior Court 

Trial Judge: Hon. Richard B. Ulmer, Jr.

Counsel: Law Office of Nikolaus W. Reed, Nikolaus Reed, for 

Plaintiff and Appellant.

Gough & Hancook, Mark Hancock, Gayle Gough, and Peter 

Messrobian, for Defendants and Respondents Pacific Gas 

and Electric Company, et al.

Phillips Spallas & Angstadt, Robert Phillips, Michael 

Halvorsen, and Matthew Gardner, for Defendants and 

Respondents, Hip Sen Benevolent Association.